Message to Snake Oil salespeople — don’t expect any breaks from Seventh Circuit Judge Frank Easterbrook.
In this clever opinion, Judge Easterbrook goes after the snake oil salespeople who promoted the Q Ray Ionized Bracelet. The promoters of the bracelet contend that it miraculously relieves arthritic pain through enhancing and balancing the “bio-energies” of the wearer. According to the promoters, the bracelet is even smart — it “knows” its owner so as to prevent second-hand use of its magical qualities. Unfortunately, these magical properties wear off in after about a year, so the wearer has to buy another one to regain the magical healing properties. But $200 per bracelet is a small price to pay for pain relief, right?
After this form of snake oil had been peddled for a few years on infomercials, the Federal Trade Commission finally stepped in to enjoin the promoters and seek disgorgement of profits, which the District Court allowed to the tune of $16 million. On appeal, the promoters contend that they didn’t commit any fraud because the placebo effect of the bracelet provided pain relief for many of its wearers. Judge Easterbrook isn’t buying it:
Although it is true, as Arthur C. Clarke said, that ì[a]ny sufficiently advanced technology is indistinguishable from magicî by those who donít understand its principles (ìProfiles of the Futureî (1961)), a person who promotes a product that contemporary technology does not understand must establish that this ìmagicî actually works. Proof is what separates an effect new to science from a swindle. . .
The ìtestsî on which they relied were bunk. (We need not repeat the magistrate judgeís exhaustive evaluation of this subject.) What remain are testimonials, which are not a form of proof because most testimonials represent a logical fallacy: post hoc ergo propter hoc. (A person who experiences a reduction in pain after donning the bracelet may have enjoyed the same reduction without it. Thatís why the ìtestimonialî of someone who keeps elephants off the streets of a large city by snapping his fingers is the basis of a joke rather than proof of cause and effect.) [. . .]
Physicians know how to treat pain. Why pay $200 for a Q-Ray Ionized Bracelet when you can get relief from an aspirin tablet that costs 1¢? Some painful conditions do not respond to analgesics (or the stronger drugs in the pharmacopeia) or to surgery, but it does not follow that a placebo at any price is better. Deceit such as the tall tales that defendants told about the Q-Ray Ionized Bracelet will lead some consumers to avoid treatments that cost less and do more; the lies will lead others to pay too much for pain relief or otherwise interfere with the matching of remedies to medical conditions. Thatís why the placebo effect cannot justify fraud in promoting a product. Doctor Dulcamara was a charlatan who harmed most of his customers even though Nemorino gets the girl at the end of Donizettiís Líelisir díamore.
That’s just a taste. Read the entire opinion. H/T Robert Loblaw.
